Monthly Archives: October 2015

Disability Discrimination in the Form of Ad Hoc Examinations

Disability Discrimination in the Form of Ad Hoc Examinations

Thomas E. Simmons*
* Thomas E. Simmons is an assistant professor at the University of South Dakota School of Law.

ABSTRACT

The 1990 Americans with Disabilities Act (ADA), alongside the Nebraska Fair Employment Practice Act (FEPA), prohibit discrimination against employees on the basis of disability. One of the lesser examined provisions of the twin acts presumes that employer-mandated medical examinations of individuals with disabilities amount to unlawful discrimination unless the employer can demonstrate a business necessity. The precise elements of a business necessity defense were articulated and explicated by the Nebraska Supreme Court in the recently decided case of Arens v. NEBCO, Inc.

Posted in Uncategorized | Comments closed

Disability Discrimination in the Form of Ad Hoc Examinations: A Brief Introduction

Nearly every Employment Law casebook, course, and lecture includes at least some mention of the Americans with Disabilities Act.  In addition to the ADA, the Nebraska Fair Employment Practice Act prohibits discrimination in the workplace.  Under either Act, an employer-mandated medical examination of an individual with disabilities is presumed to be unlawful discrimination.  Thomas E. Simmons, an associate professor at the University of South Dakota School of Law, examines the business necessity defense available to rebut this presumption as articulated by the Nebraska Supreme Court in Arens v. NEBCO, Inc.  Professor Simmons’ article may be found here and directly linked to from the Bulletin.  The Bulletin welcomes any response, counter or commentary which may be forwarded to the Online Editor, Briana Hildebrand, at bhildebrand@huskers.unl.edu.

Posted in Uncategorized | Comments closed